Bethune-Hill v. Virginia State Board of Elections
About the Case
In the wake of the 2010 census, the Virginia General Assembly redrew the legislative districts for the Virginia House of Delegates and the Senate of Virginia. The General Assembly purposely drew 12 districts to each have a set majority population of minorities — specifically, an African American voting age population that met or exceeded a pre-determined 55 percent threshold. In so doing, the Virginia legislature did not consider whether such a high concentration of minorities in those districts was necessary to enable minority voters to elect candidates of their choice in those districts or, instead, merely diminished minority voters’ impact elsewhere in the state.
Virginia citizens and voters residing in the districts brought this challenge to Virginia’s 12 majority-minority districts as unlawful gerrymanders that improperly sorted voters primarily based on their race.
A three-judge federal district court found that the General Assembly used an express racial quota when drawing the districts and that this quota was prioritized over other districting criteria. Nonetheless, the district court upheld the districts. In so doing, the court created an unsupported new legal standard, holding that prioritizing racial sorting in districts is never unconstitutional unless (1) it causes the shape of the districts to violate other traditional redistricting principles such as compactness or contiguity and (2) it cannot be explained by anything else, including political considerations.
On Mar. 1, 2017, the Supreme Court told the three-judge court to go back to the drawing board and reexamine 11 of the 12 districts in dispute. The Court rejected Virginia’s attempts to make it more difficult to bring gerrymandering claims. The decision clarified that states cannot get out of gerrymandering claims just by drawing neat districts. As the Court said: “The Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications.” Judges have to look at “the actual considerations that provided the essential basis for the lines drawn,” not at whether the legislature could have drawn the same lines without using race. The Court also reiterated that judges must conduct a “holistic” analysis of each district, taking into account evidence like Virginia’s 55 percent threshold. The Court affirmed that states can create majority-minority districts in order to ensure meaningful minority representation, but reminded states that they cannot use districting as a means to sort voters by race to suit their political needs.
What’s At Stake
The district court’s new standard would have dangerous consequences for racial gerrymandering cases. If the Supreme Court upholds the district court’s new rule, it would insulate states that unconstitutionally sort people solely by race in drawing districts from legal challenges, so long as the legislature does so neatly enough. In other words, if the Virginia House of Delegates and Speaker William Howell succeed, race-based drawing of districts would be excused where it superficially conforms to other neutral criteria.
Moreover, race-based drawing of districts would also be excused wherever the racial sorting coincides with partisan benefits. Given the close intersection of race and politics, this rule would practically render racial gerrymandering challenges a nullity.
The Campaign Legal Center submitted a friend-of-the-court brief in support of the Virginia citizens and voters who challenged Virginia’s racial gerrymander. The League of Women Voters, the Voting Rights Institute, the National Council of Jewish Women and the Racial Justice Project at New York Law School also signed on to the brief.